According to the current legal regulations, there are many different types of crimes, with each type of crime stipulating different punishment frames. So about the matter “How to determine crime and penalty frame under Vietnam law?” Let’s find out with LSX in the article below.
Legal grounds
- Penal Code 2015 amended and supplemented in 2017
What is the penalty?
Pursuant to Article 26 of the Penal Code: Punishment is the most severe coercive measure of the State to deprive or limit the rights and interests of the offender as prescribed in the Penal Code and imposed by the court. used against offenders
Accordingly, the penalty has the following characteristics:
– Punishment is the most severe form of coercion, because punishment deprives the convicted of their intimate rights and interests. It is the political right, the economic right, the right to bodily freedom, even the right to life of the offender.
– On the other hand, punishment always leaves the convicted with a legal consequence – that is, a criminal record for a certain period of time.
– Penalties are specified in the Penal Code in general and specific crimes.
– Penalties are applied only by the Court in the name of the State on the basis of the judgment.
However, for defendants sentenced to death, within 7 days from the date of legal effect of the judgment, they have the right to submit an application for amnesty to the President, if approved If the person sentenced to death is sentenced to life in prison, the decision on commutation of the State President will act as a judgment even with the highest legal value. Thus, in this case, it can be understood that outside the court, the President has the right to issue a judgment against the offender.
What is the penalty frame?
Penalty frame is understood as limiting the range of types as well as the level of punishment prescribed by law allowing the Court to choose in which specific punishment applies to the offender.
For each crime, the law can prescribe only one penalty frame, but usually it prescribes many penalty frames to apply to different types of crime cases of that crime.
The basic penalty frame is the penalty frame prescribed for the common offense of a type of crime. Every crime must have a basic punishment frame. Usually, the basic penalty frame is specified in Clause 1 of the law on specific crimes.
The extenuating penalty frame is the penalty frame prescribed for a case where, because of certain circumstances, the social danger of the crime is reduced in a different way than in the normal case of a crime. For a crime that may not have, there are one or more mitigating frames.
An aggravating penalty is a penalty frame for cases where, because of certain circumstances, the crime’s social danger increases in a different way than usual for a type of crime. For each crime there may be none, one or more aggravating penalty frames.
Classification of penalty frames
The penalty frame will be classified according to the criminal composition. According to the provisions of the Penal Code 2015, amended and supplemented in 2017, crime is classified into three types: basic, aggravating and mitigating. Corresponding to the classification of crime, the penalty frame is also divided into basic penalty frame, aggravating penalty frame and mitigating penalty frame.
- Basic penalty frame
This is the penalty frame applied to ordinary criminal circumstances, without aggravating or mitigating circumstances. The basic penalty level is usually specified in Clause 1 of the law. This is also the basis for classifying crimes according to the provisions of the law.
- Aggravated penalty frame
This is a penalty frame applied to subjects who commit crimes at a more dangerous level than the offenses specified in the basic penalty frame. high deterrent to offenders. A crime can be divided into many different aggravating penalty frames depending on the nature and seriousness of the offense. The law will specify the aggravating circumstances and the penalty frame corresponding to the aggravating circumstances.
- Mitigation penalty frame
This is the penalty frame applied to the subject who committed the crime but surrendered himself, has a repentant attitude, sincerely declares, etc. To support the investigation agency, the agency conducting proceedings to settle the case, the State will enjoy a more lenient sanction policy
How to determine crime and penalty frame under Vietnam law?
As a rule, depending on the nature and level of danger of each crime, the criminal law prescribes a penalty corresponding to the level of danger of that crime. Therefore, based on the nature and level of danger of the crime, the law divides it into clauses 1, 2, 3… to prescribe the appropriate punishment.
So what is the basis for determining the crime for the crime exactly?
Usually, based on 4 factors, which are: The object of the crime; The objective side of the crime; the subject of the crime; The subjective side of the crime to determine the crime.
According to the Penal Code, a law regulates one criminal act, but there are also some cases where a single law prescribes many criminal acts, but for crimes specified in one law there are the basic structure is the same.
From the elements constituting the above crime, the way to determine the crime in a criminal case is as follows:
– Determining the crime of the crime should be based on the specific characteristics of the behavior that is dangerous to society (criminal act). That particular characteristic is reflected in the basic composition of the crime specified in Clause 1 of the article of the Penal Code.
– Determining whether intertwining and consecutive offenses in a case constitute a framework for aggravating the penalty in the same law, if such offenses have constituted a crime and If such acts already constitute a framework for aggravating the penalty in the same law, such acts shall only constitute a crime according to the provisions of the Penal Code for that crime. If the intertwining and consecutive criminal acts in a case constitute a crime and other acts do not constitute a framework for aggravating the penalty in the same law, those acts will constitute criminal acts as independent crimes corresponding to the provisions of the Penal Code for such crimes.
After the criminal act has been identified, factors such as nature, consequences, subjects, tools, means, motives, purposes etc. clauses of the applicable law to compare with the corresponding elements of the offense under consideration, and then determine the specific applicable circumstances (also known as the circumstances determining the penalty).
The penalty framework applicable to individuals committing crimes is specified in the clauses of the applicable law. Therefore, in order to determine the applicable penalty frame, it is necessary to determine which individual’s criminal act belongs to which clause of the applicable law, specifically as follows:
– If all applicable circumstances are determined to fall under the same clause, the choice of penalty bracket specified in that clause is the penalty frame applicable to the individual committing the offence.
– If the definite circumstances fall under different clauses of the applicable law, then select the clause with the highest penalty bracket to apply.
The remaining circumstances belonging to the lighter penalty bracket are used as aggravating or mitigating circumstances for penal liability in cases where such circumstances are also specified in Article 52 on aggravating circumstances of penal liability or Article 52. 51 on mitigating circumstances of criminal liability of the 2015 Penal Code.
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Frequently asked questions
The division into different penalty frames has great significance for the process of identifying crimes as well as determining penalties for criminal acts.
Defining the penalty frame is the basis for determining the dangerous nature, corresponding to the levels of the crime.
The penalty frame is the basis for determining the specific punishment for the offender
Pursuant to Clause 3, Article 51 and Clause 3, Article 52 of the 2015 Penal Code, the aggravating and mitigating circumstances prescribed by this Code as signs of guilt or framing are not considered aggravating circumstances. mitigation while deciding punishment.
Simply put, when a sign is used to identify a person who commits a crime and to which penalty frame, that sign will no longer be applied to aggravating or mitigating the criminal liability.
According to Article 54 of the Penal Code, the contents are as follows:
– The court may decide a penalty below the lowest level of the applicable penalty frame but must be within the adjacent lighter penalty bracket of the law when the offender has at least two extenuating circumstances specified in Clause 1 of this Article. 1 Article 51 of this Code.
– The court may decide a penalty below the lowest level of the applicable penalty bracket, but it is not required to be in the adjacent lighter penalty bracket of the law for first-time offenders who assist in the case. accomplices, but played an insignificant role.
Accordingly, when the offender has extenuating circumstances specified in Article 51 of the Penal Code, depending on the personal background of the offender’s actual situation, the Court may impose a penalty below the lowest level of the penalty bracket.
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